R v Jason Joseph JOHNSON

District Court of NSW|2010-10-01|Before: Mr P

CITATION: R v Jason Joseph JOHNSON [2010] NSWDC 242

Count 4 - section 7(1) firearms offence. NPP 2 years 1 month with a balance of sentence of 8 months. The total sentence for Count 4 is 2 years 9 months. Count 3 - firearms offence involving the rifle. NPP 1 year 10 months with a balance of sentence of 8 months. The total sentence for Count 3 is 2 years 6 months which the offender will commence serving after having served 9 months for Count 4. DECISION: Count 2 - money laundering offence. Fixed term of 14 months concurrent with Count 1. Count 1 - supply count. NPP 2 years 1 month with a balance of sentence of 1 year 3 months. The total sentence for Count 1 is 3 years 4 months, to commence 1 year and 8 months after the offender first went into custody. The total effective sentence is 5 years, with a non-parole period of 3 years 9 months. The offender will become eligible for release to parole on 27 November 2010.

CATCHWORDS: CRIMINAL - Supply prohibited drug - Firearms offences - Proceeds of crime - Operation Schoale

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes Act 1900 Firearms Act 1996 Weapons Prohibition Act 1998

PARTIES: Regina Jason Joseph Johnson

SOLICITORS: Ms F Gray (Director of Public Prosecutions) Mr P Conaghan (Offender)

On 28 February 2007 police executed a search warrant on residential premises and a garage in Bonnyrigg, a suburb of Sydney. Jason Joseph Johnson (the offender), who lived at the premises with his parents and other family members, was working in the garage at the time.

A search of the garage located a substantial quantity of prohibited drugs, cash and firearms. In the offender's bedroom was an AR-15 Armalite assault rifle that was found in a black bag in the top of the wardrobe. Two loaded magazines were also found in the bag. In the top drawer of a filing cabinet in the garage, wrapped in a cloth, was a Colt pistol, loaded with a magazine containing six rounds of ammunition. Other items classified as prohibited weapons and ammunition were also found. So too were items clearly indicating that the offender was engaged in the supply of the drug cocaine. He had in his possession other illicit drugs. The offender made admissions to the police that these items were in his possession. A sum of cash, totalling $77,855 was found. This amount was admitted to be the proceeds of crime.

The offender was arrested on 28 February 2007 and has been in custody since that date. His arrest followed an investigation that was assigned the name Operation Schoale. Other people involved in the same operation have been charged with drug supply, firearm possession, and dealing with the proceeds of crime offences. This offender, although an associate of others involved, is to be sentenced only for the matters for which he has pleaded guilty.

Although the matter has a long history, I am informed that pleas of guilty were indicated in the Local Court. It is accepted that those pleas have significant utilitarian benefit. Accordingly, I will allow a twenty-five per cent reduction in the sentences that I otherwise think appropriate to make allowance for the utilitarian benefit of that plea. The guilty pleas also indicate a willingness to assist the course of justice.

The offender has also asked that I take into account a number of matters on Forms 1. He has indicated his guilt in relation to the matters and I will take them into account.

Although the pleas of guilty were entered into in the Local Court an Indictment was presented before me. The offender pleaded guilty to the following offences: 1. That between 1 October 2006 and 2 March 2007 he supplied a prohibited drug, namely 205.66 grams of cocaine. This offence is pursuant to s 25(1) Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of fifteen years imprisonment and/or 2000 penalty units. 2. That between 1 October 2006 and 2 March 2007 he did deal with the proceeds of crime, namely $77,855, where he knew that money was the proceeds of crime. This offence is pursuant to s 193B(2) Crimes Act 1900 and carries a maximum penalty of fifteen years imprisonment. 3. On or about 1 March 2007 he did possess a prohibited firearm, namely an AR-15 .223 calibre Armalite assault rifle, without being authorised to do so. This offence is pursuant to s 7(1) Firearms Act 1996 and carries a maximum penalty of fourteen years imprisonment and a standard non-parole period of three years. 4. On or about 1 March 2007 he did possess a prohibited pistol, namely a Colt self-loading semiautomatic pistol, without being authorised to do so. This offence is also pursuant to s 7(1) Firearms Act 1996 and carries a maximum period of imprisonment of fourteen years and a standard non-parole period of three years.

In relation to Count 1, I take into account on the Form 1 four offences involving possession of the drugs: cannabis, ketamine, methylenedioxymethylamphetamine and methylamphetamine.

In relation to Count 3, the possession of the Armalite rifle, I take into account five other offences involving the Firearms Act 1996 or the Weapons Prohibition Act 1998.

In relation to Count 4, the possession of a prohibited pistol, I take into account two other offences involving the Firearms Act 1996 or the Weapons Prohibition Act 1998.

The Form 1 matters are all closely related to their respective counts on the Indictment and while relevant to my assessment of issues relating to personal deterrence and retribution, here they do not add significantly to the sentences otherwise appropriate to the offences on the Indictment.

Count 1 on the Indictment involves a substantial supply of a prohibited drug. The seriousness with which the community must view this offence is reflected in the maximum penalty available to me. The amount of the drug found was significantly more than the trafficable quantity of 3 grams and relatively close to the commercial quantity of 250 grams. The offender was a drug user. I accept his unchallenged evidence that the sale of the drug was partially to fund his own drug habit. That fact does not mitigate to any significant degree the seriousness of this offence. The drug was also sold to provide living expenses. Importantly, as a user, the offender was aware of the dangers and harm that can be caused to individuals and the community at large by the supply of illicit drugs.

The offender was more than a street level dealer. His culpability was significant and requires a deterrent sentence. It is significant that he was dealing from a garage attached to his family home. The home in which his parents, his sister and his sister's children lived.

Those purposes of sentencing that operate to protect the community and attempt to prevent crime by deterring the offender are all of particular importance here. So too is the requirement that such crimes be denounced and the immense harm done to the community by the sale of illicit drugs be recognised.

Count 2 relates to possession of the proceeds of supply and is completely interconnected with the first count. I accept the offender's evidence that the money is the proceeds of the sale of drugs, which was being held to repay his supplier who advanced the drugs to him for his own use and to supply to others. The money is in fact part and parcel of the drug supply that makes up the first count.

Counts 3 and 4 involve significant breaches of the Firearms Act 1996. That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of an automatic rifle and an automatic pistol. Those weapons were not licensed nor registered. Their possession posed a significant risk to the safety of the community.

In relation to the possession of the Armalite rifle, it was stored away in a cupboard in the offender's bedroom. Nevertheless, it was not secured and it was stored with magazines containing ammunition. As noted previously, there were children in the house.

Section 7 of the Firearms Act 1996 refers to possession and the use of prohibited firearms. In my view, the circumstances must dictate whether possession or use is likely to be worse. Here, the circumstances of the possession of the rifle appear to me less serious than its actual use would have been. That said, it is the possession that must be punished here.

The offence carries a standard non-parole period of three years. Because the offence involves possession and the weapon was stored away from ready access by others, I find that this offence falls below mid range of objective seriousness. Because it was stored with loaded magazines, those circumstances mean it could not be regarded as a low range offence. In my assessment, it falls outside but toward the middle of the range. This finding, together with the early plea of guilty, provides a rationale for some departure from the standard non-parole period.

In my opinion, the possession of the prohibited pistol in Count 4 is a more serious offence. That pistol was loaded. It was stored in the garage, to which the offender's customers, both for his illicit supply and for his motor vehicle repair business, had access. The pistol was stored, admittedly wrapped in a cloth, close to drugs and other items involved in drug supply. The proximity of the two items and the manner in which it was stored all heighten the seriousness of this matter. I find that it falls into the middle range of objective seriousness for offences involving the possession of a prohibited pistol. The only reason for departure from the standard non-parole period is the plea of guilty. I note that the standard non-parole period still remains as a guide when it comes to assessing the appropriate sentence but, once there is a rationale for departure, a strict arithmetical calculation is not required.

The evidence in relation to the offender consisted of a Pre-Sentence Report, (Exhibit B); a report of Mr Tim Watson-Munro, forensic psychologist (Exhibit 1); testimonials from friends of the offender (Exhibit 2); certificates from the gaol (Exhibit 3 and 4); and a letter addressed to the Court from the offender. I had the benefit of evidence from the offender who took the opportunity to confirm the material in the written exhibits and to express his remorse.

It is clear the offender had an excellent upbringing. He has trained and worked as a motor mechanic. A motorcycle accident and the gradual but insidious use of illicit drugs brought about his ruin.

He acknowledged the harm his offences have caused to the community, his family and himself. As the offender noted in his letter to me, it is no-one's fault but his own. There is no reason not to accept that evidence, it appeared genuine and heart-felt. The lengthy period of time already spent in custody has had a profound impact on him. I trust those harsh lessons have been well learned. I take into account the fact that since early 2007 he has been in maximum security and therefore did not have access to lesser classifications, which would have ameliorated the effect of imprisonment.

The offender will require supervision on release and an individualised case plan or programs and counselling to address his drug use issues and work on relapse prevention. I accept that he now shows some insight into the harm he caused himself and others: his religious faith and family support may assist him in his endeavours. However, I note that he betrayed both his family and his church by the commission of these offences.

In relation to all matters I have been provided with statistics from the Judicial Commission of New South Wales. To the extent that they can assist in a general sense I have taken them into account.

I have particular regard, where applicable, to the standard non-parole period and the maximum penalties, together with the other material, as guides in reaching what I regard to be the appropriate penalties. I have also benefited from the submissions of the Solicitor Advocate, who appears for the Director of Public Prosecutions, and Mr Conwell, who appears for the offender. I have had regard to a number of decisions of the Court of Criminal Appeal to which I was referred.

I have considered the question of special circumstances but there is here nothing to indicate that anything other than the ordinary parole period is required to promote appropriate rehabilitation. The non-parole period for Count 1 will be reduced because of the need to maintain an appropriate balance between the total sentence and the total non-parole period: for this reason alone I find special circumstances.

I indicate that, but for the pleas of guilty, I would have imposed the following sentences: Count 1: four and a half years imprisonment; Count 2: a fixed term of eighteen months; Count 3: three years and four months imprisonment; and Count 4: three years and nine months imprisonment.

I have considered the question of totality and the impact of cumulative and lengthy sentences. I have taken into account the compounding impact of long sentences on an offender: severity of imprisonment is not simply proportional to the length of time served. There must be some level of individual punishment for each of Counts 1, 2 and 4. There are however areas of overlap. I have no desire to punish the offender twice or double count matters in mitigation. A total sentence that reflects all relevant matters other than the utilitarian value of the plea of guilty would be about or just under 7 years.

Mr Johnson, in relation to each of the four counts you are convicted.

In relation to Count 1, I take into account the Form 1 matters (Form 1A). In relation to Count 3, I take into account the Form 1 matters (Form 1B). In relation to Count 4, I take into account the Form 1 matters (Form 1C).

In relation to Count 4, the s 7(1) firearms offence, you are sentenced to a term of imprisonment that consists of a non-parole period of 2 years 1 month, to commence on 28 February 2007 and expire on 27 March 2009. The balance of the sentence of 8 months expires on 27 November 2009. The total sentence for Count 4 is 2 years 9 months.

In relation to Count 3, the firearms offence involving the rifle, you are sentenced to a term of imprisonment that consists of a non-parole period of 1 year 10 months, to commence 28 November 2007 and expire on 27 September 2009. The balance of the sentence of 8 months expires on 27 May 2010. The total sentence for Count 3 is 2 years 6 months which you will commence serving after serving 9 months for Count 4.

In relation to Count 2, the money laundering offence, you are sentenced to a fixed term of imprisonment of 14 months, to commence on 28 October 2008 and expire on 27 December 2009. I have not specified a non-parole period because this matter has been made totally concurrent with Count 1.

In relation to Count 1, the supply count, you are sentenced to a term of imprisonment that consists of a non-parole period of 2 years 1 month, to commence on 28 October 2008 and expire on 27 November 2010, on which date you will be eligible to be considered for release to parole. There are special circumstances in the need to adjust for the accumulation of sentences. The balance of the sentence of 1 year and 3 months expires on 27 February 2012. The total sentence for Count 1 is 3 years and 4 months, to commence 1 year and 8 months after you first went into custody.

The seven matters on the s 166 Certificate are marked "Withdrawn and dismissed" as they have all been taken into account on the Form 1s.

It is my intention to impose an effective sentence of 5 years, with a non-parole period of 3 years nine months, after allowance for the utilitarian value of the plea of guilty and accumulation. It is my intention that the offender will become eligible for release to parole on 27 November 2010. Given the material in evidence before me, the offender's release on that date would be appropriate but the State Parole Authority must make decision.

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